Polonco v. Biter, et al.

Filing 30

ORDER Opening Discovery for Limited Purpose of Identifying Does 2 and 3 and Requiring Plaintiff to Identify Documents Within Twenty (20) Days, signed by Magistrate Judge Stanley A. Boone on 9/3/2014. Discovery shall be open until 12/3/2014. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RIGOBERTO POLONCO,

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Plaintiff,
v.
M. D. BITER, et al.,
Defendants.

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Case No.: 1:12-cv-00984-SAB (PC)
ORDER OPENING DISCOVERY FOR LIMITED
PURPOSE OF IDENTIFYING DOES 2 AND 3
AND REQUIRING PLAINTIFF TO IDENTIFY
DOCUMENTS WITHIN TWENTY DAYS
(ECF No. 29 )

Plaintiff Rigoberto Polonco is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.

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Now pending before the Court is Plaintiff filed a motion for discovery, filed August 11, 2014.

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This action is proceeding on Plaintiff’s Second Amended Complaint, filed December 23, 2013,

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against Does 2 and 3 for excessive force while Plaintiff was housed at Kern Valley State Prison. In

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the Court’s January 28, 2014, order, Plaintiff was directed to file a status report relating to the amount

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of time necessary to conduct discovery to ascertain the identities of the two Doe defendants.

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On June 12, 2014, an order to show cause issued because Plaintiff failed to file the necessary

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status report. Plaintiff filed a response to the order to show cause on June 25, 2014. In his response,

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Plaintiff presented that he is currently incarcerated at Pelican Bay State Prison. Plaintiff asserted and

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attached an inmate request for interview in which he requests a copy of the CDCR 128B and rules

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violation dated May 5, 2011 (the date of the operative incident), while Plaintiff was housed at Kern
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Valley State Prison in administrative segregation. Based on a finding of due diligence on the part of

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Plaintiff in attempting to ascertain the identity of the two correctional officers, named as Does 2 and 3

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in the complaint for the alleged use of excessive force on May 5, 2011, the Court discharged the order

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to show cause. Plaintiff was directed to file a status report within thirty days from July 14, 2014,

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relating to the identity of these Doe Defendants.
Although the use of Doe defendants is generally disfavored, the law of this Circuit requires that

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Plaintiff be provided with “an opportunity through discovery to identify the unknown defendants,

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unless it is clear that discovery would not uncover the identities. . . .” Wakefield v. Thompson, 177

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F.3d 1160, 1163 (9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

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Plaintiff is advised that the Court will not open discovery for an unfettered amount of time.

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The Court will open discovery for a period of three months. Given that Plaintiff is limited to seeking

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discovery pursuant to Rule 45 of the Federal Rules of Civil Procedure at this juncture, he is entitled to

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the issuance of subpoenas duces tecum under Rule 45. Plaintiff shall notify the Court within twenty

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days which documents need to be produced by the California Department of Corrections and/or Kern

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Valley State Prison to identify Does 2 and 3. Plaintiff must be as specific as possible in terms of the

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document names. Upon receipt of sufficient information, the Court will direct the United States

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Marshal to serve the subpoenas duces tecum.

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Accordingly,

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IT IS HEREBY ORDERED that:

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1.

Discovery shall be open until December 3, 2014, for the limited purpose of obtaining
documents necessary to identify Doe 2 and Doe 3; and

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2.

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Within twenty (20) days from the date of service of this order, Plaintiff shall identify
the documents necessary to identify Doe 2 and Doe 3.

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IT IS SO ORDERED.

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Dated:

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September 3, 2014
UNITED STATES MAGISTRATE JUDGE

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